Cybertoonz Visits Murthy v. Missouri

The effort by Missouri to enjoin the Biden administration's "jawboning" of social media companies has reached the Supreme Court. The Solicitor General filed a long brief seeking a stay of the Fifth Circuit's injunction and explaining why cert should be granted. The Court granted cert and the stay (the latter over three dissents).

The SG's brief was remarkable for its innovative approach to the legal issues in the case, first proclaiming that states like Missouri have no first amendment right to hear from their citizens and then having to resurrect something very like a first amendment right for the federal government to speak to its citizens. Confused?  Never fear. Where technology leads lawyers and policymakers to new heights of absurdity, Cybertoonz will be there to explain it all.

Comments

[Dan Schiavetta]

These cartoons are juvenile.

[Sisu]

"Never let a 'good crisis' go to waste."

[Stepped Reckoner]

Thank you, Sisu. Now that IS juvenile — as ‘captcrisis’, of all people, should know.

The OP’s cartoon, it is more accurately to say, is Juvenal.

[David Welker]

Why?

[Dan Schiavetta]

It reduces the case to a federalism issue food fight, with team A vs. team B, oblivious to the effect a decision would have on millions of lives. Imagine a bunch of smirking junior high school boys in a privileged all white school doing this with Brown vs. Board of Education, with no thought of the dire effects of segregation on black kids.

[The Margrave of Azilia]

Once again, it's Godwin's law, with Jim Crow instead of Hitler.

[fafalone]

Now do the 100x dumber standing argument the other side is using!

No, oh right. Partisanship, not integrity is the order of the day.

[Life of Brian]

Re the Fed's "something very much like a First Amendment right" -- from p. 37:

That “intrusion by a federal court into the workings of a coordinate branch of government” irreparably harms the Executive Branch and raises serious separation-of-powers concerns. INS v. Legalization Assistance Project, 510 U.S. 1301, 1306 (1993) (O’Connor, J., in chambers).

1. This "no touchie" SOP angle proves WAY too much. I thought we conclusively declared "the President is not a king" a few years back.
2. That the best they could do for this... um, creative theory was a sole, non-binding opinion speaks volumes.
3. Now that we're clearly out of 1A-auto-irreparable-harm territory, I'll reiterate my question from the other day: where's the beef? (Particularly given the shameless flipside arguments on p. 39 that the states, on the other hand, must show that their 1A harm is imminent, not just theoretical, and that it's not going to take long to resolve this case anyway so who cares?)

[David Nieporent]

Okay, now find any support for the notion that states have standing to sue the federal government for censorship because states have a right to read people's comments on twitter.

[Life of Brian]

Does the instant appeal to whataboutery mean you agree (through gritted teeth or no) that the feds' irreparable harm argument is hogwash?

[Randal]

No.

[Stewart Baker]

I think Life of Brian is closer to the point of the Cybertoon than captcrisis. What's striking about Murthy is that it has already forced the SG into territory somewhere between creative and wacky. Destroying any claim to first amendment protection for governments to beat the states and then reconstructing first amendment protection for the feds from constitutional structure (separation of powers) is beyond creative, and it ignores federalism as a constitutional structure that would just as arguably protect against federal efforts to suppress state government views and access to citizens' views. Which means that "federalism is stupid" turns out to be rather more legal argument than the SG mustered in its brief.

[Dan Schiavetta]

What is the fed's motivation here? And what is the real world situation that provoked it?

[Stepped Reckoner]

The federal government’s motive is that the ‘feds’ want to be free to, behind the scenes, pressure the carriers of most private political communications of U.S. citizens to actively suppress communication supporting political positions that the feds want suppressed.

[Dan Schiavetta]

No.

It's because of the spread of misinformation which has resulted in a large percentage of Americans believing the 2020 election was rigged or stolen, resulting in destabilizing of our federal system of government.

It's also because of the spread of Covid misinformation which has resulted in the deaths of thousands of Americans and the needless infections of millions more.

[Kleppe]

"It’s because of the spread of misinformation which has resulted in a large percentage of Americans believing the 2020 election was rigged or stolen, resulting in destabilizing of our federal system of government."

The funny thing is that the Biden administration has responded to these allegations in precisely the way they would if they were guilty, so they aren't doing themselves any favors. But to be fair, who could have foreseen that the government exerting pressure on private companies to throttle the speech of conspiracy theorists would only lend credence to their claims? The national incompetency crisis is in full bloom.

[Nige]

'The funny thing is that the Biden administration has responded to these allegations in precisely the way they would if they were guilty,'

This is a phrase that could and would have been applied to any response or no response. Y'know, an utterly empty non-falsifiable self-reinforcing conspiratorial argument.

[Randal]

Destroying any claim to first amendment protection for governments to beat the states...

I think that's a gross misreading of the brief. Here's what it has to say about the states' standing:

The second theory -- based on the States’ “right to listen” to its residents on social media -- is equally meritless. This Court has sometimes “referred to a First Amendment right to ‘receive information and ideas.’” But it has relied on that right to authorize suits only by intended recipients with some connection to the speaker. Respondents have established no such relationship here, and the Fifth Circuit’s theory, if accepted, would confer standing on any government official who expresses a desire to receive a constituent’s speech. That is exactly the sort of “boundless theory of standing” that this Court has consistently rejected.

The SG isn't saying that such a right doesn't exist, just that it isn't implicated here for what sounds to me like legit reasons, not particularly wacky.

[Stewart Baker]

I agree that the standing argument doesn't -- quite -- seek to destroy the states' right to hear from citizens as grounded in the first amendment. The brief doesn't do that until a dozen pages later (on the page I cited), where it says: "Finally, whatever the merits of the individual respondents’ underlying First Amendment claims, the state respondents’ claims fail for an additional, independent reason: The States lack First Amendment rights. "

[Randal]

I don’t see where you cited a page… but whatever. This argument is even lamer. The SG is being consistent here — the government doesn’t have First Amendment rights, whether it’s the states or the feds. That seems dumb obvious. If the states are making a claim based on their own First Amendment rights, that’s stupid.

The states have two other options. One is to make a claim based on something else, like “federalism” or “constitutional structure” as per the cartoon. Or they could claim an injury based on the First Amendment rights of their constituents… although even assuming that survived the standing analysis, it’s not clear to me how that one would work.